Secretary of Labor v. Hopkins County Coal, LLC

Plain-English summary

A fired Hopkins County Coal belt examiner filed an MSHA discrimination complaint that expressed a belief of unfair treatment but did not identify a specific protected activity. During its investigation, MSHA requested his personnel file and five years of files for similarly situated employees, but the company refused until MSHA identified the protected activity, leading to two citations and a failure-to-abate order. The Commission held that a miner's filed belief of discrimination triggers the Secretary's authority to investigate and need not plead every element of a discrimination case. It also held that section 103(h) permits MSHA to require records an operator is not otherwise legally required to keep when the request is limited, relevant, specific, and not unreasonably burdensome; the targeted personnel files met that standard and did not violate the Fourth Amendment. The operator was not entitled to additional notice of the suspected protected activity before complying. The Commission further upheld the no-area-affected section 104(b) order because any uncorrected violation may support a failure-to-abate order, and the 45-minute deadline was reasonable after management stated it would not comply. Commissioners Young and Althen disagreed with significant parts of the majority's records-demand analysis.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(a), 813(h), 814(b), and 815(c)(2)
• Outcome: Two records-related citations and the section 104(b) failure-to-abate order were affirmed.
• Key point: MSHA may investigate a miner's discrimination complaint before the protected activity is fully identified and may require narrowly targeted personnel records needed to test disparate treatment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 
20004-1710

SECRETARY OF
LABOR,                               :      Docket No.     KENT 2009-820-R

MINE SAFETY AND HEALTH                    :                              KENT
2009-821-R

ADMINISTRATION (MSHA)                       :                              KENT
2009-822-R

:                              KENT 2009-1441

v.                                                 
:                 

:          

HOPKINS
COUNTY COAL, LLC                   :

Before:  Jordan,
Chairman; Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY:  Jordan,
Chairman; Cohen and Nakamura, Commissioners

These
contest and civil penalty proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). 
Hopkins County Coal, LLC (“HCC”) appeals an Administrative Law Judge’s decision
upholding the validity of two citations and one failure to abate order issued
by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”).  The violations were
issued in response to HCC’s refusal to release personnel records to inspectors
as part of a MSHA discrimination investigation.  The Secretary of Labor requires
the records to determine whether there was a violation of the
anti-discrimination provisions of the Act. 

The
issues before us are: (1) whether section 105(c) of the Mine Act authorizes the
Secretary to investigate a miner’s complaint of discrimination filed with MSHA
if the complaint does not state a specific protected activity; (2) whether the
Secretary has the authority under sections 103(a) and (h) of the Mine Act to
demand access to personnel records in furtherance of a discrimination
investigation; (3) whether the personnel records sought in the subject
proceedings were “reasonably required” under section 103(h); (4) whether the
“reasonable” standard of section 103(h) mandates notice of the protected
activity as a prerequisite to the Secretary’s power to demand records; (5) whether
the Secretary’s demand for personnel records violates the operator’s Fourth
Amendment rights; and (6) whether the section 104(b) order issued to HCC was valid.

For
the reasons discussed below, we affirm the Judge.  We hold that pursuant to the
plain language of section 105(c) of the Mine Act, the Secretary did not exceed
his authority by investigating allegations of discrimination and that HCC’s
compliance with the investigation was required in spite of the unidentified
protected activity.  We hold that section 103(h) of the Mine Act permits the
Secretary to demand access to the disputed personnel records and conclude that
the records were reasonably required to enable the Secretary to perform his
function of determining HCC’s compliance with
the anti-discrimination provisions of the Act.  We also find that section
103(h)’s “reasonabl[e]” standard does not require notice of the protected
activity to the operator as a prerequisite to the Secretary’s investigation or
an operator’s compliance.  Finally, we conclude that the Secretary’s demand for
records does not violate the Fourth Amendment rights of HCC and that the
section 104(b) order was properly issued.

I.

Factual and Procedural Background

A.    The Factual
Background

Robert
Gatlin was employed as a belt examiner at HCC’s Elk Creek Mine in Madisonville,
Kentucky.  On January 8, 2009, Gatlin was fired by HCC after he refused to
perform a pre-shift examination.  With the assistance of a complaint processor,[1] Gatlin
filed a discrimination complaint form with MSHA on January 20, 2009, and
alleged that he was discharged in violation of section 105(c) of the Mine Act, 
30 U.S.C. § 815(c). [2]  Specifically,
the complaint stated:

I feel that I
was unfairly terminated due to being directed to do more than my regular job
duties on a daily basis, which I would do on weekends for extra pay.  I also
feel that the comment about the union played a part in my being discharged. I
would like my job back, any negative comments deleted from my personnel file
and backpay for the time I’ve been off.  I feel that my name has been black
balled in the mining industry around here and they will not hire me.

Gov. Ex. 1 at
1-2.  The complaint did not set forth a protected activity as outlined in
section 105(c)(2).  Gatlin also requested temporary reinstatement.  MSHA Supervisory
Special Investigator Kirby Smith interviewed Gatlin the next day and determined
that Gatlin may have engaged in protected activity and may have suffered
adverse action.[3] 
34 FMSHRC 789, 790 (Apr. 2012) (ALJ).

On
January 26, 2009, the MSHA District Manager, Carl E. Boone, II, advised HCC by
letter that MSHA wanted to interview five named miners in response to Gatlin’s
discrimination complaint “during the fact-finding segment of this
investigation.”  Gov. Ex. 2.  Boone requested that HCC contact MSHA Special Investigators
Smith or Rodney Adamson by February 6 “with a convenient date and time to
conduct these interviews.” Id.  In a letter dated February 6, counsel
for HCC refused to arrange the requested interviews unless MSHA identified the
protected activity alleged in the complainant’s discrimination claim.  Gov. Ex.
3. 

On
February 23, 2009, Boone sent HCC’s counsel a letter requesting a number of
documents, including Gatlin’s personnel file and the “personnel files of all
employees at the Elk Creek Mine who were disciplined, reprimanded or terminated
during the period of January 1, 2004 – January 20, 2009 for engaging in the
conduct which led to the termination of Robert Gatlin.”  Gov. Ex. 4.  This
request would later be clarified.  MSHA requested that the documents be
provided to Smith by the close of business on March 2, 2009.  After the
exchange of several letters, HCC eventually agreed to provide the requested
documents, except for the personnel files. 

In letters discussing
MSHA’s document request, HCC made repeated requests for clarification of the
protected activity alleged by Gatlin, and declared in its March 23 letter that
if MSHA could not provide the protected activity, which HCC was entitled to
know, “then the agency has no case to investigate, no jurisdiction, no
entitlement and no basis upon which to make any request.”  Gov. Ex. 9.  MSHA never
responded. 

On
March 23, Investigators Smith and Adamson arrived at the mine.  After reviewing
the examination books, the investigators requested the personnel files, which
the mine’s general manager, William Adelman, refused to provide on the grounds
that the request was vague and that privacy concerns prevented release of the
files.  Tr. 119-20.  Smith then issued section 104(a) Citation No. 6694904
alleging that HCC violated sections 103(a) and (h) of the Act by failing to
produce the requested records.[4] 

Smith
gave HCC until 9:00 a.m. (45 minutes) to abate the violation, but at 8:50 a.m.
Adelman informed Smith that he had spoken to counsel and he did not intend to
comply.  Smith waited until 9:00 a.m. and then issued section 104(b) withdrawal
Order No. 6694905, stating that:  “The [operator‘s] agent . . . refused to
comply with Citation No. 6694904 requiring the operator to produce/provide
records requested by MSHA Special Investigators during the performance of their
official duties in the investigation activities under [section] 105(c) of the
Mine Act.”  Gov. Ex. 11.  The order was designated “No area affected,” and no
miners were withdrawn. 

After
another five minutes, the requested documents still were not produced and at
9:05 a.m., Smith issued another section 104(a) citation, No. 6694906, to HCC
for continuing to work in the face of a section 104(b) withdrawal order.  He
set an abatement time of 10:00 a.m.  When the citation was not abated, HCC
became subject to the provisions of section 110(b)(1) of the Act, which imposes
daily civil penalties of up to $5,000 a day.  30 U.S.C. § 820(b)(1). 

Later
that day, HCC filed notices of contest with the Commission and shortly
thereafter, a motion requesting an expedited hearing, which the Secretary
opposed.  The following day, in a conference call with a Commission ALJ, HCC
received clarification that MSHA sought the personnel records of similarly situated
miners who had been disciplined for insubordination.    Tr. 56, 91, 156-58, 161-62. 
On March 26, HCC produced Gatlin’s personnel file and the redacted files of
four other employees.  In a March 27 conference call, the parties informed the
Judge that abatement of the citations and order had occurred one day prior,
thereby ending HCC’s continuing liability under section 110(b)(1) and obviating
the need for an expedited hearing.  The Judge then issued an order denying
HCC’s motion to expedite.  The parties then filed cross-motions for summary
decision.

B.     The Judge’s
Decision

In
his April 2, 2012 decision, the Judge upheld the citations and order.  34
FMSHRC at 789.  He rejected HCC’s argument that section 103 of the Act does not
authorize the Secretary to request personnel files during a discrimination
investigation.  He determined that because investigating discrimination claims
is a function of the Secretary, information relevant to assessing the merits of
those claims is “reasonably required.”  The Judge found the Secretary’s
interpretation of sections 103(a) and (h) reasonable and entitled to deference. 
34
FMSHRC at 803.  He determined that the requirement in section 103(h) that the
information sought be “reasonably required” obligates the Secretary to have a
reasonable understanding of the complainant’s claim prior to making a document
request.  He found that Smith had credibly testified that he had a reasonable
understanding of Gatlin’s claim before making the request, and rejected HCC’s
claim that the request was a fishing expedition.  Id. at n.15. [5]

The
Judge rejected HCC’s Fourth Amendment challenge on the grounds that under Donovan
v. Dewey, 452 U.S. 594, 604 (1981), warrantless inspections under the Mine
Act are permissible because the mining industry is pervasively regulated, and
the certainty and regularity of the Act’s inspection scheme provide an adequate
substitute for a warrant.  He further stated that the Secretary’s interest in
promoting miner safety outweighs HCC’s general interest in its personnel
records.  34 FMSHRC at 798-99. 

The
Judge disagreed with HCC’s contention that section 104(b) orders cannot be
issued for violations where there is no “area affected.”  He concluded that the
provision’s language as to whether an affected area must be identified and
whether miners must be withdrawn is unclear.  He accorded deference to the
Secretary’s interpretation that he may exercise his discretion in deciding to
designate an order as “no area affected” and in declining to withdraw miners.  Id.
at 804-05. 

II.

Disposition

A.    Whether the
Secretary had authority to investigate Gatlin’s complaint of discrimination although
it failed to identify a protected activity.

HCC argues that
because Gatlin’s MSHA complaint failed to allege a specific protected activity,
the Secretary had no basis, and therefore no authority, to carry out an
investigation on the miner’s behalf. [6]
 The Secretary counters that the Mine Act authorizes MSHA to investigate every
discrimination complaint filed by a miner, regardless of whether it alleges
every element of a prima facie case of discrimination.[7]

We
first turn our attention to the language of the statute.  In considering the
question of statutory construction, our first inquiry is “whether Congress has
directly spoken to the precise question at issue.”  Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin
Coal Co., 18 FMSHRC 582, 584 (Apr. 1996).  If a statute is clear and
unambiguous, effect must be given to its language.  See Chevron, 467
U.S. at 842-43; accord Local Union 1261, UMWA, 917 F.2d 42, 44 (D.C.
Cir. 1990).  In ascertaining the meaning of the statute, courts utilize
traditional tools of construction, including an examination of the “particular
statutory language at issue, as well as the language and design of the statute
as a whole,” to determine whether Congress had an intention on the specific
question at issue (“Chevron I” analysis).  Id.; Local Union
1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment Project v. Dole,
889 F.2d 1127, 1131 (D.C. Cir. 1989).  If a statute is ambiguous or silent on a
point in question, deference is accorded to the interpretation of the agency
charged with administering the provision in question, provided that the
interpretation is reasonable (Chevron II” analysis).  See Chevron,
467 U.S. at 843-44; Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460
(D.C. Cir. 1994). 

Section 105(c)(2)
of the Mine Act authorizes the Secretary to investigate a complaint of
discrimination upon the filing of a complaint.  Specifically, the Act states that:

Any miner or applicant
for employment or representative of miners who believes that he has been
discharged, interfered with, or otherwise discriminated against . . . may . . .
file a complaint with the Secretary alleging such discrimination.  Upon
receipt of such complaint, the Secretary shall forward a copy of the
complaint to the respondent and shall cause such investigation to be made as
he deems appropriate. . . . If upon such investigation, the Secretary
determines that the provisions of this subsection have been violated, he shall
immediately file a complaint with the Commission . . . .

30
U.S.C. § 815(c)(2) (emphasis added).

According
to the statutory language, a miner’s mere belief that he or she has been
discriminated against and the filing of the MSHA complaint form expressing that
belief are sufficient grounds to trigger an investigation of discrimination by
the Secretary.  The statute does not include a requirement that the miner state
the protected activity that allegedly motivated the adverse action, nor that he
proclaim any other element of a prima facie case of discrimination.  In fact,
beyond the miner alleging his belief of discrimination, the provision says
nothing of form or content of the miner’s charging complaint.  Compare Title VII of
the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-5(b) (requiring through
regulation that a charge contain “[a] clear and concise statement of the facts,
including pertinent dates, constituting the alleged unlawful employment
practices.”  29 C.F.R. § 1601.12(a)(3)).[8] 
The statutory provision here is silent on whether the miner’s charging
complaint must specifically identify a protected activity. 

Although
the legislative history is equally silent in this regard, it does provide a useful
context for the proper consideration of protected activity, as well as how
section 105(c) should be administered.  Specifically, Congress was clear that “[t]he
listing of protected rights contained in section 105 is intended to be
illustrative and not exclusive, and that “the scope of the protected activities
be broadly interpreted by the Secretary.”  S. Rep. No. 181, 95th Cong., 1st
Sess. 35-36 (1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 623-24 (1978).  It further stated that
section 105(c) was to be construed “expansively to assure that miners will not
be inhibited in any way in exercising any rights afforded by the legislation.” 
Id. at 36.  It went on to say that “[i]t is the Committee’s intention to
protect miners against not only the common forms of discrimination, such as
discharge, suspension, demotion . . . but also against the more subtle forms of
interference . . . . The bill requires the Secretary to rigorously enforce
these rights with discrimination complaints receiving high priority.”  Id.;
Pasula, 2 FMSHRC at 2789 (“[T]he 1977 Mine Act is remedial
legislation, and is therefore to be liberally construed.”).  Therefore, even if
the complainant does not assert a protected activity expressly protected under
the Act, the activity may still be protected if it furthers the purpose of the legislation. 
Pasula, 2 FMSHRC at
2789.

The
Act does not prohibit the commencement of the Secretary’s investigation until a
protected activity or actionable cause can be articulated.  Instead, the Act requires
that the Secretary investigate “upon receipt” of the complaint, “as he deems
appropriate.”  30 U.S.C.       § 815(c)(2); see also S. Rep. No. 95-181
at 36-37 (1977) (“The Secretary’s investigation of matters alleged in the
complaint must commence within fifteen days of receipt of the complaint.”).[9]  The
statutory language and the legislative history together make clear that an investigation
deemed appropriate by the Secretary should be afforded to every “miner . . .
who believes that he has been discriminated against” and has “file[d] a
complaint with the Secretary alleging such discrimination.”  30 U.S.C. §
815(c)(2).[10]

There
may be instances where a protected activity cannot be set forth because the
miner does not actually engage in protected activity, but may nonetheless experience
adverse action as a result of the operator’s erroneous suspicion that the miner
has engaged in such activity.  See Moses v. Whitley Dev. Corp., 4 FMSHRC
1475 (Aug. 1982), aff’d,
770
F.2d 168 (6th Cir. 1985).  In such situations, the miner is hardly the best person
to draw the necessary legal distinction between a claim where he has exercised
his rights and one in which he has not exercised them, but where his employer
has sought to interfere with his ability to do so.  He may not understand that
such interference is still prohibited under the Mine Act.

Indeed,
Supervisory
Special Investigator Smith testified that “[a] lot of times in the fact finding
segment [of the investigation], miners don’t even know their miner’s rights. 
They don’t know what to tell you.  They don’t know the key phrases, and when we
go and investigate and talk with them, we try to pull that.”  Tr. 52-53.  He
further testified that the majority of discrimination claims that cross his
desk do not clearly set forth a protected activity.  Tr. 37.  Thus, in cases
where a miner is uninformed or unclear about what constitutes a protected
activity but believes that he or she has been wronged by an employer, the
Secretary’s investigation into this “belief” serves as a necessary safety
mechanism that ensures the miner has the opportunity to fully develop his possible
claim of discrimination.[11] 

The
dissent expresses concern that MSHA “was seeking to find a basis for a claim
that had not been made by the miner.”  Slip op. at 2.  However, Investigator
Smith testified that based on allegations made by Gatlin in the interview, he
began looking into the possibility of a protected activity related to
determining and reporting safety hazards.  Tr. 46-48.  Specifically, Gatlin
alleged that as a belt examiner he had been required to perform work beyond his
regular job duties, which made his job so burdensome that he did not have
enough time to correct the safety hazards he found.  Gatlin alleged that as a
result, he began citing more hazardous conditions in the pre-shift and on-shift
exam books.  Gatlin stated that he had been told that he did not necessarily
have to record a hazard if it was corrected.  Tr. 47-48.  Thus, based on the
interview, MSHA determined that it had a basis to investigate Gatlin’s
allegations as a possible violation of section 105(c), even though protected
activity was not specifically alleged in Gatlin’s written complaint.  This is
precisely what the Mine Act contemplates in section 105(c)(2) by creating a
provision for MSHA to investigate a complaint made upon a miner’s “belie[f].”  The
judge credited the investigator’s testimony, finding that he had an
understanding of the miner’s claim and “did not . . . embark on a ‘fishing
expedition.’”  34 FMSHRC at 803 n.15.  The dissent’s contention that the
inspector failed to describe Gatlin’s possible protected activity or how it
could have related to adverse action, slip op. at 6, n. 7, is incorrect.[12]

The
Act requires that the Secretary’s investigation “commence within 15 days of the
Secretary’s receipt of the complaint, and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate reinstatement of
the miner pending final order on the complaint.”      30 U.S.C.A. § 815(c)(2). 
In its discussion of the provision, Congress explained that “[u]pon determining
that the complaint appears to have merit, the Secretary shall seek an
order of the Commission temporarily reinstating the complaining miner pending
final outcome of the investigation.”  S. Rep. No. 95-181 at 36-37 (1977)
(emphasis added).  Thus, it is during this
preliminary investigation that the Secretary must determine only whether
there may be validity to the miner’s claim, or in other words, that the
claim was “not frivolously brought.”  See Jim Walter Res., Inc. v. FMSHRC,
920 F.2d 738, 747 (11th Cir. 1990), citing S. Rep. No. 95–181.[13] 

It
appears that HCC confuses the minimal requirements that must be satisfied to
trigger the Secretary’s section 105(c) investigative power with the threshold
requirements that must be met before the Commission in order to establish that
a miner’s case is not being frivolously brought.  The “not
frivolously brought standard” has been deemed the functional equivalent to the
“reasonable cause to believe” standard.  Id. at 748, n.10.  As one
Commission Judge has noted, in practice, in order to prevail on this very low
burden of proof, the Secretary need only establish protected activity and one of
the circumstantial indicatives of motive.  Comunidad Agricola Bianchi, Inc.,
32 FMSHRC 206, 211 n.9 (Feb. 2010) (ALJ).  However, the threshold for
initiating the Secretary’s investigative power is even lower.  It only requires
the filing of a complaint with MSHA.  It does not require that the Secretary
establish protected activity before it may investigate, because whether or not
a protected activity exists is determined during the preliminary investigation,
not before.[14]

HCC’s theory
that the Secretary’s investigative authority rests solely on the initial
statements of the complaining miner is contrary to the statute’s language, Congressional
intent, and the purpose of the provision.[15] 

B.     Whether the
Secretary’s records demand was authorized under section 103 of the Act.

1.      The Secretary
has the right to obtain records an operator is not legally required to
maintain.

HCC
maintains that section 103(a) does not grant the Secretary the right to compel
the production of documents, and that his authority under section 103(h) is
limited to records that an operator must keep to allow the Secretary to conduct
his functions under the Mine Act.  We disagree.   

In
Big Ridge, Inc., 34 FMSHRC 1003, 1012-13 (May 2012), aff’d,715
F.3d 631, 638 (7th Cir. 2013), we upheld the Secretary’s right to inspect and
copy records, (including personal medical information) not required by law to
be maintained, in order for the Secretary to determine compliance with Part 50
accident reporting requirements.  We emphasized that the Secretary has broad
authority to conduct inspections and investigations under section 103(a).  See
Big Ridge, 34 FMSHRC at 1012; Tracey & Partners, 11 FMSHRC 1457,
1464 (1989).  That provision states in relevant part that “the Secretary . . .
shall make . . . investigations in . . . mines . . . for the purpose of . . .
determining whether there is compliance with the mandatory health or safety
standards . . . or other requirements of this chapter.”  30 U.S.C. § 813(a).  Thus,
the language of section 103(a) generally authorizes the Secretary to verify,
through investigation, operator compliance with the anti-discrimination requirements
of section 105(c) of the Act.  

Section
103(h) states that:

In addition to
such records as are specifically required by this chapter, every operator of a
. . . mine shall establish and maintain such records . . . and provide
such information, as the Secretary     . . . may reasonably require from
time to time to enable him to perform his functions under this chapter.

30 U.S.C. §
813(h) (emphasis added).  We held in Big Ridge that the plain language
of section 103(h) provides a broad Congressional grant of authority to the
Secretary to carry out his functions under the Act.   34 FMSHRC at
1012, aff’d,715 F.3d at 638; see also Energy West Mining Co. v.
FMSHRC, 40 F.3d 457 (D.C. Cir. 1994) (recognizing broad scope of section
103(h)). 

Section 103(h) does
not restrict the Secretary’s access to records that are specifically required
to be maintained by the Act and regulations.  Big Ridge, 34 FMSHRC at 1012, aff’d
715 F.3d at 641-42; see also BHP Copper, Inc., 21 FMSHRC 758, 766
(July 1999).  In fact, “Congress rejected earlier proposed versions of this
section, which had limited the Secretary’s access to operators’ records to
those specific records which the Secretary had ‘prescribe[d] by regulation.’ S.
717, 95th Cong., at 20, reprinted in Leg. Hist. at 129; H.R. 4287, 95th
Cong., at 20, reprinted in Leg. Hist. at 207.”  Big Ridge, 34
FMSHRC at 1013. 

In
its decision in Big Ridge, the Seventh Circuit stated that section
103(h) provides that “MSHA may ‘reasonably require’ mines to produce
non-required records when the additional information would enable MSHA ‘to
perform [its] functions’ under the Act.  This text permits MSHA to make
information demands for a wide range of purposes—any reasonable requirement
that would help MSHA fulfill the purposes of the Mine Safety Act.”  Big
Ridge, 715 F.3d at 641; see also S. Rep. No. 95-461, at 47 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 1325 (1978) (“the House
amendment . . . authorized the Secretary to require records, reports, and other
information not otherwise specified by the Act.”). 

Accordingly,
we conclude that section 103(h) broadly authorizes the Secretary to request
access to records not required to be kept by operators, as long as the records
are “reasonably require[d]” to enable him to perform his function under the
Mine Act. 

2.      The personnel
records were “reasonably required.”

We now consider
whether the Secretary’s demand satisfies the requirements of section 103(h).  We
conclude that the personnel records requested by the Secretary are “reasonably
require[d] . . . to enable him” to carry out his investigative “functions”
under sections 105(c) and 103 of the Act.  30 U.S.C. § 813(h).[16]

The request for
personnel records by the Secretary was reasonable because it met the standard
set forth by the Seventh Circuit in Big Ridge, as it was “sufficiently limited
in scope, relevant in purpose, and specific in directive so that compliance
will not be unreasonably burdensome.”  715 F.3d at 646 (quoting See v. City
of Seattle, 387 U.S. 541, 544 (1967)). [17]

First, the records
demand was sufficiently limited in scope, as it was tailored to capture only
records of employees who had been disciplined, reprimanded, or terminated for
engaging in the same or similar conduct as Mr. Gatlin.  The scope was further
limited by the time frame covered and the manner of inspection.  Specifically,
the time period
was limited to records from the last five years.  This is a reasonable window
of time for capturing any relevant information given that the records sought
would contain a discrete type of employee conduct.  The manner was
limited to MSHA’s request to inspect and copy the records and did not include
the agency rummaging through the files of HCC. 

Second, these specific
directives also made compliance with the request manageable and not unreasonably
burdensome, which is evidenced by Adelman’s statement that it only took them “a
few hours” to gather the requested files.  Tr. 130; see also infra at 15.

Third, the
personnel records were relevant to the purpose of a discrimination investigation. 
34 FMSHRC at 803.  They were critical aids in the Secretary’s determination of disparate
treatment, which is relevant to a finding of discrimination.  Investigator
Smith testified
that Gatlin’s personnel file would show his work history, including any
disciplinary action taken against him, to find any information corroborating
Gatlin’s allegations and to determine his general credibility.  Tr. 56, 68. 
The personnel files of other similarly situated employees were requested in
order to determine whether there was evidence of disparate treatment.  Tr. 56, 91; 34 FMSHRC at
792. 

Further,
the request enables the Secretary to carry out his investigative functions
under sections 105(c) and 103(a).  See Big Ridge, 34 FMSHRC at 1017.  Verifying
operator compliance with the Mine Act is one of the express purposes for which
section 103(a) authorizes MSHA to inspect and investigate mines, see Big
Ridge, 715 F.3d at 642, and verifying HCC’s compliance with section 105(c)
falls squarely within this function.  This type of inquiry is particularly
important because the Act protects miners against discrimination in order
to encourage their active role in improving mine safety.  Swift v.
Consolidation Coal Co., 16 FMSHRC 201, 205 (Feb. 1994). 

Congress
specifically stated that:
“If
our national mine safety and health program is to be truly effective, miners
will have to play an active part in the enforcement of the Act. . . . [I]f
miners are to be encouraged to be active in matters of safety and health, they
must be protected against any possible discrimination which they might suffer
as a result of their participation.”  S. Rep. No. 95-181 at 35, Leg. Hist. at

623.  “The
[discrimination] complaint procedure, therefore, serves an important function
in accomplishing the legislation’s broader goals of improving mine safety and
protecting miners.”  Vulcan Const. Materials, LP v. FMSHRC, 700 F.3d
297, 302 (7th Cir. 2012).  As the Judge
stated, “[w]here the Secretary’s function is the evaluation of a discrimination
claim, information that is relevant to assessing the merits of that claim,
including evidence of protected activity, adverse action or discriminatory
intent may be ‘reasonably required.’”  34 FMSHRC at 803.  

Accordingly,
we hold that records that tend to establish or disprove an element of a prima
facie case of discrimination generally are, in our view, reasonably required to
enable the Secretary to perform his investigative function under section 105(c)
of the Mine Act. 

3.     
HCC
is not entitled to “notice” prior to MSHA commencing an investigation.

HCC also asserts
that MSHA was required to provide it with a threshold level of “notice” of the
protected activity so that HCC could determine whether a colorable claim was
being alleged and whether its compliance was required.  We disagree.  The
statute does not entitle HCC to “notice” of the protected activity, and
therefore, “notice” is not a prerequisite to the Secretary’s investigation or to
an operator’s compliance with the investigation.

We first begin
by noting that HCC misconstrues its authority.  The Mine Act does not permit the
operator to determine the scope or dictate the direction of an MSHA compliance
investigation.  According to section 105(c), the Secretary “shall cause such
investigation to be made as he deems appropriate.” 30 U.S.C. §
815(c) (emphasis added).  Thus, this duty is committed to the sole discretion
of the Secretary.  The Mine Act also does not allow the operator to determine
if a colorable claim has been alleged.  That initial determination is also made
by the Secretary and only reached after he has investigated to an extent that
he has deemed appropriate.  

Section
105(c)(2) requires that once a miner who believes that he has suffered
discrimination files a complaint with MSHA, “[u]pon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the respondent and shall
cause such investigation to be made as he deems appropriate.”  30 U.S.C. §
815(c)(2) (emphasis added).  The language says nothing about providing “notice.”  Under
a plain reading, the Secretary is only required to forward a copy of the
complaint, as filed by the miner, to the operator.  As previously noted, the
provision contains no guidance on what a charging complaint must include. 
There is also no language that suggests the Secretary must provide to the
operator anything more than a “copy” of what the miner has filed before he may
commence his investigation into the complaint.[18] 
Congress did, however, intend for section 105(c) to be construed broadly to
ensure that miners would not be hindered in any way in exercising their
rights.  Consequently, we have no basis to read conditions into the Act that
might further complicate a miner’s process for exercising his rights under this
section.   

HCC
additionally asserts that notice is required here because it is analogous to
the notice to service of process in a civil suit, which is to give the party
notice of a claim or charge being filed against it.  Oral Arg. Tr. 9.  However,
this is not the proper context in which to view the miner’s complaint to MSHA
or the Secretary’s investigatory power.  HCC erroneously seeks to apply the procedures
associated with formal court proceedings to the Secretary’s pre-proceeding
investigation.

The
miner’s charging complaint here is not a pleading and does not initiate a
formal section 105(c)(2) proceeding before the Commission. The miner’s complaint
only serves as the mechanism by which the Secretary’s investigative function is
activated.  It is the predicate to, and not the result of, the Secretary’s
determination that the Mine Act has been violated.  See U.S. v. Morton
Salt Co.,
338 U.S. 632, 641-43 (1950) (drawing distinction between the
judicial process and the administrator’s function of investigating).  In this
regard, we find NLRB precedent helpful: 

A charge does
not initiate a formal . . . proceeding against a party.  [It] is filed by a
private party and “serves merely to set in motion the investigatory machinery
of the Board.”  Texas Indus., Inc. v. NLRB, 336 F.2d 128, 132 (5th Cir.
1964). . . .  The charge “is not designed to give notice to the person
complained of . . . Once . . . filed, the Board decides whether to issue a
complaint, terminate the investigation as unfounded, or dispose of the matter
through informal methods.  Before [filing] a complaint, the action remains
purely investigatory; no parties or judicial hearings exist.

NLRB v. H.P.
Townsend Mfg. Co.,
101 F.3d 292, 294-95 (2d Cir. 1996) (internal citations omitted); see also
Russell-Newman Mfg. Co. v. NLRB, 407 F.2d 247, 249 (5th Cir. 1969). 

Consistent
with our holding in Big Ridge, we conclude that section 103(h) broadly
authorizes the Secretary to request access to personnel records not
specifically required to be kept by operators, as long as the records are
“reasonably require[d]” to allow the Secretary to perform his function of
investigating complaints of discrimination made pursuant to section 105(c) of
the Mine Act.

C.    Whether the Secretary’s
demand violates HCC’s Fourth
Amendment rights.

HCC argues that
MSHA infringed upon its constitutional rights by seeking to conduct a
warrantless search of operator records that are not required to be kept under
the Mine Act and that are not reasonably required by MSHA to perform its
functions under the Act.  It also asserts that MSHA’s demand was unreasonable
because the records were not necessary to determine compliance, the records were
irrelevant to the statutory scheme, and the request was overbroad and
burdensome. 

The inspection
was reasonable under Donovan v. Dewey.

Recognizing
that mining is a pervasively regulated industry, the Supreme Court has upheld
warrantless inspections under the Mine Act using a three-part test.  Donovan
v. Dewey, 452 U.S. 594, 599, 601-05 (1981).  The Court held that an
inspection is reasonable if it is: (1) authorized by law; (2) necessary for the
furtherance of federal interests; and (3) the occurrence is not “so random,
infrequent, or unpredictable that the owner, for all practical purposes, has no
real expectation that his property will from time to time be inspected by
government officials.”  Id. at 599; see also Colonnade Catering Corp.
v. United States, 397 U.S. 72, 77 (1970); Marshall v. Barlow’s, Inc.,
436 U.S. 307, 323 (1978). 

The instant case
satisfies the Donovan test.  First, the document request was authorized
by sections 105(c) and 103 of the Mine Act.  Second, as stated above, the document
request furthered the anti-discrimination provisions of the Act, which serve as
an integral component in the enforcement of the Act’s health and safety
regulations.  Specifically, the Secretary has a substantial interest in
protecting
miners against discrimination and deterring operators from engaging in discriminatory
conduct so that miners remain actively engaged in improving health and safety
conditions at mines.  Finally, the Act charges the Secretary with the function
of investigating complaints of discrimination made against mine operators.  These
investigations are not uncommon, and presumably anticipated by operators upon
being notified that a discrimination claim has been filed.

The request
satisfied the Fourth Amendment requirements for an administrative
subpoena.

Recently,
in reviewing the Commission’s decision in Big Ridge, the Seventh Circuit
decided that, although “highly instructive,” the Donovan analysis “does
not fully answer the Fourth Amendment question,” for Donovan concerned
physical safety inspections of mines, not demands for production of medical and
personnel files in mine custody.  715 F.3d at 645.  The court further
observed that the investigation at issue did not involve an intrusion in which
government inspectors personally opened file cabinets and examined computer
hard drives, but rather required mine operators to allow MSHA to review and
keep copies of records.  Id; see also Donovan v. Lone Steer, Inc.,
464 U.S. 408, 415 (1984).

Focusing
its Fourth Amendment analysis on the substance of MSHA’s inspection request,
the Seventh Circuit determined that MSHA’s document review authority under
section 103(a) and (h) amounts to an “administrative subpoena” in substance
rather than a search or seizure.  Big Ridge, 715 F.3d at 646.  Such a subpoena
implicates the Fourth Amendment to the extent that it requires the demand for
information be “sufficiently limited in scope, relevant in purpose, and
specific in directive so that compliance will not be unreasonably burdensome.” 
Id., citing See v. City of Seattle, 387 U.S. at 544.  Once an
agency has satisfied the requirements for an administrative subpoena, the
respondent carries the burden of showing that the request is overbroad, unduly
burdensome, irrelevant, or otherwise an abuse of the court’s process.  See
United States v. Whispering Oaks Resid. Care Facility, LLC, 673 F.3d 813,
817-19 (8th Cir. 2012) (citing United States v. Powell, 379 U.S. 48, 58
(1964)); NLRB v. N. Bay Plumbing, Inc., 102 F.3d 1005, 1008-09 (9th Cir.
1996); F.T.C. v. Invention Subm. Corp., 965 F.2d 1086, 1090 (D.C. Cir.
1992); F.T.C. v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977). 

We
conclude that the Secretary’s request satisfies the “administrative subpoena”
requirements of the Fourth Amendment.  First, the parameters of the request are
sufficiently limited in scope because its reach is restricted to the personnel
records of employees who were “disciplined, reprimanded or terminated” within
the last five years for engaging in the same conduct that led to Mr. Gatlin’s
termination.   

Second, these
records would corroborate or undermine Gatlin’s allegations of disparate
treatment.  These records are relevant to the Secretary’s overall purpose of identifying
and abolishing the culture of intimidation and retaliation aimed at miners who
may want to report safety hazards.  Protecting miners from reprisals for their
participation in the safety process plays a vital role in the improvement of
safety conditions in mines.    

Finally, the
request was specific and clear enough that it was not unreasonably burdensome
for HCC to produce the targeted records.  Once HCC received clarification from
MSHA on the exact reach of the records demand, the request, as already noted,
was specific in scope in that it involved employee disciplinary records that
were restricted to a particular type of employee conduct, time frame, and
manner of inspection.  Searching within such well-defined confines would not be
burdensome.  In fact, General Manager Adelman testified that after the
clarification, HCC only needed to search through “just those terminated
employees,” and that it took him only five hours to locate the five relevant
records that were ultimately produced.        Tr. 130, 159. 

Nonetheless,
we recognize that MSHA’s original request was hardly a model of clarity.  We
also acknowledge that given the irrelevant and private information contained
therein, in the interest of time and fairness, the agency should have informed
the operator at the outset that it would accept redacted copies of the files. 
However, as this is not HCC’s first exposure to an MSHA discrimination
investigation, there is no reason to believe that HCC was not already aware
that redaction was an option. 

Although
the Secretary’s request would have captured private information that was not
relevant to the discrimination claim, we nonetheless conclude that this is not
a legitimate basis upon which an operator can rest its refusal to cooperate
with an authorized demand for records.  See Woerth v. United States, 231
F.2d at 824 (“It may be that the records requested pertain to transactions not
within the scope of the Act and which are irrelevant to the investigation in
question.  However, the fact that the respondent may have intermingled
irrelevant information in the records in question cannot serve to defeat the
right of the Secretary of Agriculture to examine those records as to
transactions which had their origin in the activities of the respondent as a
registered dealer.”).  At the very least, HCC could have released the relevant
portions of the records.

We
also hold that the burden was on HCC to raise its concerns regarding the
reasonableness of the section 103(h) records request prior to issuance of any
citation.[19]
 Had HCC properly raised these concerns regarding the terms of the request,
MSHA would have had a duty to discuss the concerns with HCC in good faith.  Courts
have held that before they will conclude that a subpoena is “arbitrarily
excessive,” they expect the person served “to have made reasonable efforts . .
. to obtain reasonable conditions” from the government.  United States v.
Morton Salt, 338 U.S. 632, 653 (1950); In re Subpoena Duces Tecum,
228 F.3d 341, 349, 351 (4th Cir. 2000) (“as a condition to maintaining the
argument that an investigative subpoena is overly broad and oppressive, [the
subpoenaed party] would have to be able to point to reasonable efforts on his
behalf to reach accommodation with the government”).

Had
HCC taken minimal steps early on to negotiate with MSHA, the imposition of
daily penalties might have been avoided.  After providing HCC with
clarification, the Secretary accepted the records in redacted form with no
objections and terminated the violations on March 26, 2009. 

D.    Whether the
section 104(b) order was valid.

Finally,
HCC argues that the section 104(b) order issued to it is invalid on its face
because the Secretary failed to follow the statutory requirements that he
determine an affected area and withdraw miners.  We disagree.

1.     
The
Secretary’s interpretation of section 104(b) was reasonable.

Section
104(b) of the Act provides that, if on an inspection following the issuance of a
section 104(a) citation, the Secretary finds:

(1) that a
violation described in a citation issued pursuant to subsection (a) has not
been totally abated within the period of time as originally fixed therein or as
subsequently extended, and (2) that the period of time for the abatement should
not be further extended, he shall determine the extent of the area affected
by the violation and shall promptly issue an order requiring the operator . . .
to immediately cause all persons . . . to be withdrawn . . . until . . .
the Secretary determines that such violation has been abated.

30
U.S.C. § 814(b) (emphasis added).

The
first clause of the provision plainly sets out two enumerated conditions the
Secretary must establish before he can issue a withdrawal order: (1) that the underlying
violation has not been totally abated within the set abatement time, and (2)
the abatement time should not be extended.  If those two conditions are
satisfied, clause two, the center of our controversy, mandates that the
Secretary must determine the extent of the area affected by the
violation, and then issue an order which requires the withdrawal of all
persons from that area.  HCC’s reading of the provision would have us treat
clause two as an additional finding the Secretary must make before he is
authorized to execute a section 104(b) order.  We reject this interpretation. 

When
the Mine Act is silent on an issue, the Secretary’s interpretation which
reasonably effectuates the health and safety goals of the Act is controlling.  Sec’y
of Labor ex rel. Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir.
1996).  Deference is accorded to “an agency’s interpretation of the statute it
is charged with administering when that interpretation is reasonable.”  Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844).  

We
conclude that the Mine Act is silent on this issue, and that the Secretary’s
interpretation of the statute, which permits an MSHA inspector to issue a section
104(b) order upon a determination that there is no area affected and/or no
miners to physically withdraw, is a reasonable interpretation of the provision. 
It
is significant that nothing in the language of section 104(b) prohibits the
Secretary from issuing a “no area affected” order.  The language indicates
that, if the two conditions above are met, the MSHA inspector “shall determine
the extent of the area affected by the violation” and order the appropriate
withdrawal of miners from “such area” until it is determined that the violation
has been abated.  Thus, if no specific area of the mine is affected by the
violation, it is reasonable to read the statute as requiring the inspector to
state that determination and issue a corresponding section 104(b) order.

The
Secretary’s authority to issue a section 104(b) failure to abate order is not
predicated on proving that an affected area exists, but on showing that the
underlying violation was not properly abated and that the time should not be
extended.  Indeed, Congress stated that “[s]ection 104 provides the
Secretary with such authority upon a determination that the violation has not
been totally abated within the original or subsequently extended abatement
period, and that the abatement period should not be further extended.”  S.
Conf. Rep. No. 95-181, at 30 (1977), reprinted in Legis. Hist. at 618. 
The language of section 104(b) also makes clear that if the pre-conditions are met,
the Secretary is statutorily required to issue an order regardless of the extent
of the area affected.  See 30 U.S.C. § 814(b) (“If . . . the
Secretary finds that a violation . . . has not been totally abated . . .  and that
the period . . . should not be further extended, [then] he shall
determine the extent of the area affected . . . and shall promptly issue an
order”) (emphasis added).  

The
purpose of section 104(b) is to spur swift abatement of existing violations and
compel operator compliance with the Act.  A “no area affected” order provides an
important deterrent to operators who fail to abate violations in a timely
fashion.  See Thunder Basin Coal Co., 16 FMSHRC 671 (Apr. 1994)
(acknowledging the Secretary’s practice of issuing “no area affected” section
104(b) orders).  The issuance of an order for a failure to abate promotes
compliance by imposing a consequence on an operator that refuses to comply with
the Mine Act.  Moreover,
penalizing an operator’s refusal to comply with the Act in some instances,
while allowing its refusal in others, falls short of fulfilling the Act’s
purpose.  Thus, the Secretary’s broad interpretation is consistent with the
remedial nature of the Act, its structure, and its progressive enforcement
scheme of increasingly severe sanctions that are applied when an operator
incurs repeated violations and refuses to comply.  See 30 U.S.C. §
814(d), (e); Pattison Sand Co. v. FMSHRC, 688 F.3d 507, 513 (8th Cir.
2012). 

While
an operator’s continued refusal to turn over records may not present an
immediate safety risk, it is nonetheless hazardous in that it hinders the
Secretary’s investigations, which are intended to ensure operator compliance
with the Act’s safety measures.  Consequently, the rapid abatement of all
violations, not only those that present immediate physical hazards, is
essential for the protection of miners.  Otherwise, absent our approval of the
Secretary’s interpretation, MSHA would have no remedy or leverage to force timely
compliance should an operator refuse to comply with a reasonable request for
information in furtherance of an investigation.

Accordingly,
we conclude that the Secretary’s interpretation of section 104(b) is reasonable
and entitled to Chevron II deference.  We hold that an operator’s
failure to abate any violation is a sufficient basis for the issuance of a
section 104(b) order.

2.     
The
Secretary has met his burden of proof regarding the section 104(b) order.

Lastly, having determined that MSHA’s issuance of a section 104(b)
order was proper under the circumstances, we now decide whether the Secretary
has met his burden of proof regarding the validity of the withdrawal order
issued to Hopkins due to its failure to abate.

In general, to
establish a prima facie case that a section 104(b) order is valid, the
Secretary must prove by a preponderance of the evidence that the underlying
violation has not been abated within the time fixed or extended for abatement. 
Martinka Coal Co., 15 FMSHRC 2452, 2455-56 (Dec. 1993), citing
Mid-Continent Res., 11 FMSHRC 505, 509 (Apr. 1989).  The operator may also
challenge the reasonableness of the time period set for abatement, or the
Secretary’s refusal to extend the time period.  Energy West Mining Co.,
18 FMSHRC 565, 568 (Apr. 1996). 

In
the instant case, it is undisputed that HCC refused to turn over the personnel
records within the 45-minute abatement time.  Investigator Smith determined
that the abatement time was reasonable and should not have been extended
because there was no justification to do so.  34 FMSHRC at 793.  Smith’s
refusal was not unreasonable considering that just prior to expiration of the
abatement period, mine General Manager William Adelman indicated that he had no
intention of complying.  34 FMSHRC at 793; Tr. 72.  Adelman then continued to
refuse after the section 104(b) order had been issued, which then led to issuance
of a section 104(a) citation for continuing to work in the face of the section 104(b)
order.  HCC made it clear that regardless of the time set for abatement, it
would not comply.[20] 

Accordingly,
we conclude that the Judge did not err in finding that the section 104(b) Order
No. 6694905 was validly issued.  

IV.

Conclusion

For
the reasons set forth herein, we conclude that the Judge did not err in finding
that the citations and order were validly issued.  Accordingly, Citation Nos.
6694904 and 6694906 and Order No. 6694905 are all affirmed. 

/s/ Mary Lu
Jordan

Mary Lu Jordan,
Chairman    

/s/ Robert F.
Cohen, Jr.

Robert F. Cohen,
Jr., Commissioner

/s/ Patrick K.
Nakamura

Patrick K.
Nakamura, Commissioner

Commissioners Young
and Althen, dissenting: 

In this case, neither the miner nor MSHA alleged or
identified any basis for a claim of discrimination under section 105(c).  The miner’s
complaint asserted insubordination as the reason for his discharge, and MSHA
failed and refused to identify any basis for a claim of discrimination. 
Nonetheless, the majority upholds imposition of a civil penalty arising from
MSHA’s demand that the operator search and then produce five years of personnel
records unrelated to any activity by the claimant miner.  The Secretary utterly
failed to carry his burden of proof of showing a reasonable basis for the
document demand.  We respectfully dissent.

Disposition1

Section 103(a) of the Mine Act authorizes the
Secretary to make inspections and investigations for, inter alia, “determining whether there is compliance with the
mandatory health or safety standards or with any citation, order, or decision
issued under this title or other requirements of this Act.”  30 U.S.C. §
813(a).  Additionally, section 103(h) requires that operators “provide such information, as the Secretary or the Secretary
of Health and Human Services may reasonably require from time to time to
enable him to perform his functions under this Act.”  30 U.S.C. § 813(h)
(emphasis added).  Here, the Secretary pursues a function under section
105(c) of the Mine Act.  30 U.S.C. § 815(c).  The ultimate issue, therefore, is
whether the Secretary reasonably required disclosure of five years of personnel
records of uninvolved mine employees when the miner has not alleged
discrimination based on protected activity and MSHA did not identify any
alleged basis for a claim of discrimination.

Section 105(c) permits a
miner who believes he has been discharged “in violation of this section” to
file a “complaint” with MSHA.  The miner initiates the investigation by
filing a written complaint alleging that he/she suffered adverse employment
action because of the exercise of a right protected by the Mine Act.  There are
three prerequisites to a Mine Act discrimination case: protected activity,
adverse employment action, and a motivational connection (a link) between the
protected activity and the adverse action.  Sec’y of Labor on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on
other grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). 
Therefore, a cognizable claim of discrimination exists when a miner or MSHA
alleges that the miner engaged in protected activity and suffered adverse
employment action that was at least partly motivated by the identified
protected activity. 

Here, MSHA did not base its
demand for five years of personnel records upon any factual allegation made by
the miner or MSHA to the operator that the miner might have suffered adverse
employment action based upon protected activity.  Neither the miner nor MSHA
ever made any allegation of even possibly unlawful discrimination.  The miner
himself alleged his discharge resulted from his own insubordination and MSHA,
without saying more, demanded five years of personnel records for employees not
connected in any way to the complaining miner.

Robert Gatlin, filed a
complaint (Gov’t Ex. 1) and, as required by section 105(c), MSHA served that
document upon the operator.  The alleged complaint, however, is factually
defective.  It plainly did not assert a violation of section 105(c).  The
so-called complaint did not allege either protected activity or any adverse
action motivated by unnamed protected activity.  In its entirety, it alleged:           

I feel that I was unfairly terminated due to being directed to
do more than my regular job duties on a daily basis, which I would do on
weekends for extra pay.  I also feel that the comment about the union played a
part in my being discharged.

I would like my job back, any negative comments deleted from my
personnel file and backpay for the time I’ve been off.  I feel that my name has
been black balled in the mining industry around here and they will not hire me.

Gov’t Ex. 1-2.

Gatlin’s claim was that he
insisted upon doing work on weekends for extra pay.  In short, he simply
refused to do assigned work on a weekday.  He does not admit insubordination;
he proclaims it.  In doing so, he does not allege either protected activity or
any adverse action motivated by protected activity.  Thus, he fails to allege
even implicitly two out of the three elements of a violation of section
105(c).  He actually alleges that the operator discharged him for a legitimate
reason—insubordination.  Our colleagues in the majority completely agree that
Gatlin’s claim did not assert discrimination because of protected activity. 
Indeed, they devote many pages to discussing a specific heading of whether MSHA
could “investigate Gatlin’s complaint of discrimination although it failed to
identify a protected activity.”  Slip op. at 5. Thus, they concede that the
miner’s complaint did not state either protected activity or a nexus to adverse
action.2  They further concede, therefore, that
from the very outset of MSHA’s investigation, it was seeking to find a basis
for a claim that had not been made by the miner.

Nor does the majority
contend that MSHA ever identified any potential claim of discrimination because
of protected activity.  When asked by the operator what the claim was – that
is, what the protected activity was and what the nexus to discharge was, MSHA
failed to reply.  Plainly, neither the miner nor MSHA ever alleged or otherwise
notified the operator of any cognizable claim of section 105(c) discrimination
as a basis of the need for five years of personnel records of other miners.

Despite the absence of any
basis for a discrimination claim, MSHA demanded six categories of records from
the operator.  Of course, the operator only knew that the miner complained that
insubordination was the reason for his discharge.  Through counsel, therefore,
the operator responded reasonably to the facially unreasonable demand by
requesting a statement of any alleged protected activity and discrimination
asserted by the miner that would serve as a reasonable basis for the sweeping
document demand.  MSHA flat out failed and refused to provide any reason for
the demand.3 

Nowhere in the record do we
find any allegation of the basic elements of a violation of section 105(c), by
inference or otherwise, from the miner or from MSHA.  The miner did not even
testify at the post-citation hearing.  Therefore, without a doubt, Gatlin never
alleged a cognizable claim.  He certainly provided no basis for a reasonable
need for years of personnel records unrelated to the reason for his discharge. 
We must accept that this miner knew and honestly expressed his objection to his
discharge.  The miner’s expression of discontent was only that the operator did
not schedule the miner’s work to permit extra pay on Saturday.  Without a claim
of protected activity or nexus to an adverse action, the miner’s complaint is
simply that the operator fired him for insubordination. 

For its part, MSHA never
supplemented the miner’s complaint with any basis for a claim of discrimination
or reason that, given the absence of a discrimination claim, it was reasonable
to demand five years of personnel files.  This is particularly important
because the requested records did not even go to the complaining miner’s
conduct.  It is difficult to believe the majority actually thinks MSHA has
authority to investigate every adverse employment action in the mining
industries through sweeping document demands about uninvolved employees without
any alleged basis in section 105(c).  Yet, that is the inevitable outcome of
its decision.

In Hatfield v. Colquest
Energy, Inc., 13 FMSHRC 544 (Apr. 1991), the Commission recognized that the
miner’s complaint establishes the contours for subsequent action.  When MSHA
found no merit in Hatfield’s initial complaint, he filed a pro se action.  The
operator moved to dismiss the complaint for failure to state a claim, and the
Judge issued a Show Cause Order.  Id.  In response, Hatfield filed an
amended complaint.  Id. at 545.  The Judge denied the motion to dismiss,
and the Commission granted a petition for interlocutory review.  Id. at
544.

On review, the Commission
described the structure of section 105(c).  It found that Hatfield’s original
complaint was general in nature and contained no indication of the new matters
apparently alleged for the first time in the amended complaint.  Id. at

546.  The Commission held that the initial complaint formed the basis of MSHA’s
investigation.  Id.  After MSHA refused to act on that initial
complaint, the miner could not expand his pro se claim by alleging matters not
within the scope of the initial complaint and never investigated by MSHA.  The
Commission remanded the case to the Judge to determine if the activities
alleged in the amended complaint were part of matters investigated by MSHA in
connection with the initial complaint.  Thus, the miner’s subsequent pro se
complaint was limited by the terms of his initial complaint.

The recent case of Wilson
v. Farris, 38 FMSHRC 341 (Feb. 2016) (ALJ), pet. for discretionary rev.
denied, Unpublished Notice, KENT 2015-672-D (Mar. 11, 2016), relies upon Hatfield
to find correctly that, absent a cognizable discrimination claim, there is no
reasonable basis for permitting sweeping discovery.  There, a miner’s
representative filed a section 105(c) complaint against three rank-and-file
miners asserting the miners asked a federal inspector how they could get rid of
him as a miner’s representative.  Id.  In a well-reasoned opinion, the
administrative law judge denied the complainant’s request for discovery and
granted summary judgment for the respondents.  Id. at 353.  The miner’s
complaint did not state a cognizable claim of discrimination.  Discovery was
thus not warranted.

In ruling upon Respondents’ Motion for Summary Decision, the
Court works from the proposition that each of Wilson’s allegations in his
complaint is taken to be true.  Thus, the Court is left ‘only with the question
of whether, as a matter of law, Complainant has alleged a cognizable claim of
discrimination under section 105(c) of the Mine Act.’

Id. at 350.  In Wilson, the
claimant did not allege the necessary element of adverse action in his
complaint.  The Judge did not allow depositions to be taken in the mere hope of
finding some element of support for a cognizable claim of discrimination—a type
of claim not made in his Complaint.  More specifically, the Judge found, “[h]aving
failed to establish any adverse action, it would be entirely inappropriate to
saddle Respondents with the expense and time attendant to such discovery in
Complainant’s attempt to see if he can manufacture a claim, when the four
corners of Wilson’s complaint utterly fall short.”  Id. at 353.  The
Commission declined to hear Wilson’s petition for discretionary review on March
11, 2016.  

Throughout the
proceedings in this case, MSHA never made any effort to expand upon or in any
way provide the operator with any claim of an adverse action motivated in any
part by protected activity that could support the reasonableness of its
document demand.4  It is similarly inappropriate here to
saddle Respondent with the expense and time attendant to responding to MSHA’s
fishing expedition in hopes it can manufacture a claim for a miner, when the
miner’s complaint failed to state one, and the agency after its investigation
cannot and/or does not articulate any alleged basis for a discrimination claim.

The majority
holds that “the burden was on HCC to raise its concerns regarding the
reasonableness of the section 103(h) records request prior to issuance of any
citation.19  Had HCC properly raised these concerns regarding the
terms of the request, MSHA would have had a duty to discuss the concerns with
HCC in good faith.”  Slip op. at 17-18 (emphasis added.)  In footnote 19,
the majority evinces a compelling sense of irony saying, “Beyond demanding
identification of the protected activity, HCC did nothing to remedy the
deficiencies it would later identify in MSHA’s demand.” 

The operator’s
concern with whether there existed a cognizable claim of protected activity –
that is, whether there was any basis for a claim of discrimination – goes
directly to the heart of the “reasonableness” of a document request.  That is
the critical “concern” raised by the operator.5  In the absence of a
cognizable claim, there simply was no reasonable basis for a demand of five
years of personnel records.  MSHA did not even offer to discuss the operator’s
legitimate concern.6

Having held that
MSHA had a legal obligation to discuss the operator’s concerns, the majority
does not, and cannot, cite any evidence that MSHA was willing to engage in any
such good faith discussions with the operator notwithstanding the operator’s
requests.  MSHA never addressed in any way other than through citation the
operator’s legitimate concern that MSHA demanded confidential documents even
though neither the miner nor MSHA claimed even any possible basis for finding
adverse action because of protected activity.  Clearly, that was an “operator
concern.”  Yet, MSHA refused to discuss it.  The majority’s own holding
completely undercuts its decision.

Unable to provide a
colorable basis for its document request, MSHA simply stonewalled the
operator’s counsel’s request for a charge of protected activity within the
scope of section 105(c) or any nexus with adverse employment action.  The only
attempt made by MSHA to allege protected activity occurred at the hearing—that
is, after the operator necessarily had to decide whether to capitulate or
assert its rights and face a civil penalty.  Even then, the hearing record
fails to identify any allegation of any connection between any protected
activity and an adverse employment action.7 

The records demanded by MSHA
do not go to the complainant’s performance or any actions with respect to him. 
The majority states the
“records would corroborate or undermine Gatlin’s allegations of disparate
treatment.”  Slip op. at 17.  However, there is no evidence in this record that
Gatlin ever made any allegation of disparate treatment.  Further, there is no
evidence anywhere in the record that MSHA had any reason to investigate
disparate treatment or asserted to the operator that possible disparate
treatment was a reason it wanted records.  By manufacturing an unspoken reason
for demanding the records, the majority essentially acknowledges that the
demand was a fishing expedition by MSHA to see if it could find a basis for a
claim that had not been made by the miner.

Remarkably, the miner did
not testify at the hearing.  Only one inspector testified for MSHA.  He
admitted that the demanded personnel records would not be helpful
in determining whether the miner engaged in protected activity.  Tr. 95.  The
inspector also admitted that 21 days after the filing of the complaint (the target
date for filing a Request for Temporary Reinstatement), he had no idea of
protected activity by Gatlin.  Tr. 86, 89.  The inspector further agreed that
MSHA did not notify the operator of any protected activity.  Tr. 88.  Indeed,
the inspector conceded that on the very day he issued the citation—March 23,
which was 62 days after the miner filed the complaint—the inspector still did
not know of any protected activity by the complaining miner other than
insubordination.  Tr. 101-02.8  Therefore, prior to the citation and
even the hearing, MSHA neither had nor had presented the operator with any
claim of protected activity that might form the first predicate for a section
105(c) claim.9 

MSHA’s failure was
fundamental; it refused to provide any reason-based claim of any alleged
protected activity upon which the miner could base a complaint under section
105(c).10  Further, neither the miner nor MSHA
ever stated any connection between any of the unidentified protected activity
and any adverse employment action.  MSHA simply insisted upon production of the
documents without providing any legal basis for its request, beyond
strong-arming the operator with demands and threats.  This is not an issue of
an operator having a right to know the full extent of a miner’s contentions; it
is an issue of MSHA failing to provide any reasoned basis for the mandatory
production of records.

Without an assertion of protected
activity and nexus to adverse action, there is no “complaint of discrimination”
upon which to base a “reasonable” request for years of personnel records.  It
is only a complaint that “I got fired and I do not like it.”  The Secretary’s
position, stated most succinctly, is that there need not be an allegation of a
section 105(c) violation in order to compel delivery of extensive files.  The
Secretary asserts, and the majority would wrongly grant MSHA, a carte
blanche right to records under section 105(c) even when neither MSHA nor
the complainant alleges that there is an actual claim of discrimination on the
table.  Our colleagues accept that position as reasonable.  We vigorously
disagree.

Under the majority’s
reasoning, the statutory requirement that the miner file a “complaint” that is
served on the operator has no purpose.  It is merely a notice that a miner has
asked MSHA to investigate an adverse employment action without an actual claim
of section 105(c) discrimination.  Then, MSHA—without a claim of, or any basis
for a claim of,  any possible protected activity or any possible nexus to adverse
action—may demand whatever it wishes including five years of personnel records
that have nothing whatsoever to do with whether the subject miner engaged in
protected activity.  Effectively, under the majority’s reasoning, MSHA may make
a plenary demand for documents without demonstrating there has been an actual
claim of discrimination. 

To the majority, MSHA has
absolute authority to investigate through extensive document demands the
possibility of disparate treatment although neither the miner nor MSHA had
articulated any claim of protected activity or a nexus between protected
activity and an adverse action.  That is nonsense. 

Even when agencies are
empowered with the right to issue administrative subpoenas, federal courts do
not permit fishing expeditions in the absence of an actual claim.  For example,
the Seventh Circuit will not enforce an administrative subpoena for documents
when that claimant has not made a cognizable claim of discrimination.  EEOC
v. United Air Lines, Inc., 287 F.3d 643, 654-55 (7th Cir. 2002) (“Nothing
in the charge suggests systemic discrimination on the basis of national origin
or sex with respect to life, health, disability and leave benefits.”). 
Similarly, nothing in this miner’s charge or MSHA’s conduct suggests discrimination
based on protected activity.

The majority
fails to come to grips with the fundamental problem in this case.  Section 103
requires that document requests be “reasonable.”  This means that MSHA must
provide a reasonable basis for the request for the demand.  The majority
focuses on irrelevancies such as specificity, quantity, and five-year period
without ever dealing with the actual problem.  MSHA never explained why, or
identified any claim with respect to which, the records were reasonably necessary. 
Without an explained connection between an even possibly cognizable claim of
discrimination and the requested documents, the demand is simply an unfettered
investigation to see if MSHA can manufacture a claim when no claim has been
made.  Federal courts reviewing administrative subpoenas do not permit fishing
expeditions such as MSHA undertook in this case.11  See,
e.g., EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir.
2014) (company-wide information need not be produced in connection with
investigation of allegation by specific individual); EEOC v. Burlington N.
Santa Fe R.R., 669 F.3d 1154, 1157-58 (10th Cir. 2012) (court refused
to enforce broad subpoena in charge filed by two complainants); EEOC v.
Kronos Inc., 620 F.3d 287 (3d Cir. 2010); EEOC v. S. Farm Bureau Cas.
Ins. Co., 271 F.3d 209 (5th Cir. 2001) (EEOC not entitled to subpoena
information about gender of employees as part of investigation of employer on
race discrimination charge under Title VII); In re McVane, 44 F.3d 1127
(2d Cir. 1995); EEOC v. K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir.
1982) (“[T]he subpoena cannot be so broadly stated as to constitute a ‘fishing
expedition.’”).

In EEOC v. Kronos Inc.,
620 F.3d at 300-02, the Third Circuit refused to enforce a subpoena by the
Equal Employment Opportunity Commission seeking files relative to possible race
discrimination when the complaint before it was for discrimination on the basis
of disability.  As here, no facial claim of the type of discrimination the
agency sought to investigate was pending before the agency.  There, at least,
there was a cognizable charge of another form of discrimination.  Nonetheless,
a demand for documents to support an investigation into a form of
discrimination for which there was not a cognizable complaint was not
reasonable.  It was a fishing expedition.  Fishing expeditions simply are not
reasonable.

There simply is nothing in
the allegations by Gatlin or MSHA’s preliminary investigation that alleged
protected activity or adverse action based on protected activity and nothing
MSHA said changes that fatal fact.  When there is not even a claim of protected
activity or adverse action based on protected activity by the miner or MSHA, a
request for five years of personnel records is a fishing expedition not
authorized by the statute as a reasonable request.

The miner filed an honest
statement that he refused to do work unless he could do it for more pay on
weekends.  He suffered the predictable consequences from a refusal to
work—discharge.  That claim, without any subsequent information or explanation
by MSHA alleging protected activity or such activity as a motivating factor for
adverse action, does not provide a reasonable basis for an invasive document
request under section 105(c). 

We respectfully
dissent.

/s/ Michael G.
Young

Michael G.
Young, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

[1]  A complaint
processor is an MSHA employee who assists miners with filling out the MSHA
complaint form.

[2]  30 U.S.C. §
815(c)(1) states, in pertinent part:

No person shall discharge or in any
manner discriminate against . . . or otherwise interfere with the exercise of
the statutory rights of any miner . . . because such miner . . . has filed or
made a complaint under or related to this Act, including a complaint notifying
the operator or the operator’s agent, or the representative of the miners . . .
of an alleged danger or safety or health violation

. . . .

[3] At the time of
the trial, Smith had been a special investigator for approximately five years,
routinely investigating section 105(c) discrimination complaints.  He had
investigated approximately 75 discrimination complaints while serving in this position. 
Tr. 32-33.

[4]  Sections
103(a) and (h) of the Mine Act provide the Secretary with broad authority to
inspect and investigate mines and to request records of mine operators.  30 U.S.C. §
813(a) and (h). 

[5]  Investigator
Smith testified that by February 6, he had not yet established a protected
activity, but based on allegations made by Gatlin in the interview, Smith began
looking into the possibility of a protected activity related to determining and
reporting safety hazards.  Tr. 46-48.  Specifically, Gatlin alleged that as a
belt examiner he had been required to perform work beyond his regular job
duties, which made his job so burdensome that he did not have enough time to
correct the safety hazards he found.  He alleged that as a result, he began
citing more hazardous conditions in the pre-shift and on-shift exam books. 
Gatlin stated that he had been told that he did not necessarily have to record
a hazard if it was corrected.  Tr. 47-48.

[6]  The Secretary
argued in his response brief that the Commission should decline to consider
this argument because HCC raised it for the first time on appeal.  However,
based on our review of the record, we conclude that the argument was adequately
raised below and that the Judge had an opportunity to pass on the question.  Accordingly,
we will consider the issue.

[7]  In order to
establish a prima facie case of discrimination under section 105(c), a complainant must
present evidence demonstrating that (1) the individual engaged in protected
activity, (2) that there was an adverse action, and (3) that the adverse action
complained of was motivated in any part by that activity.  See Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980); UMWA o/b/o Franks
& Hoy v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2093 (Aug. 2014).

[8]  EEOC v.
United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002), relied upon by our
dissenting colleagues for the proposition that the Seventh Circuit will not
enforce administrative subpoenas absent a cognizable claim of discrimination,
is inapposite.  Slip op. at 8.  In that Title VII case, alleging discrimination
on the basis of national origin and sex because of the airline’s failure to
make contributions to the French social security system, the threshold
sufficiency of the charge was not at issue.  287 F.3d at 651 (“UAL does not
point to any infirmities in the charge.”).  Rather, the Court rejected a
records request that extended far beyond the inquiry into the airline’s social
security payments and that would have taken five full-time employees more than
a year to satisfy.  Id. at 648, 655.  That is not the situation here.  See
Tr. 130.     

[9] Our dissenting
colleagues’ reliance on Wilson v. Farris, 38 FMSHRC 341 (Feb.
2016)(ALJ), is misplaced. Slip op. at 4-5.  Wilson was a discrimination case,
in which MSHA had determined, after investigation, that a violation of section
105(c) had not occurred.  The complainant then filed an action under section
105(c)(3), and subsequently requested discovery from the respondents.  As the
dissent notes, the administrative law judge denied the discovery request and
granted summary decision to the respondents because the complainant had not
alleged a cognizable claim of discrimination.  The clear difference between Wilson
and the present case is that here the document request is being made by MSHA in
carrying out its statutorily-mandated duty to investigate the complaint. 

Likewise,
our dissenting colleagues’ reliance on Hatfield v. Colquest Energy, Inc., 13
FMSHRC 544 (Apr. 1991) is misplaced.  In Hatfield, the Commission
reviewed a judge’s order denying a motion to strike a miner’s amended 105(c)(3)
complaint.  The dissent cites Hatfield for the proposition that a
miner’s private complaint filed with the Commission pursuant to section
105(c)(3) is limited by the terms of the miner’s initial complaint filed with
MSHA.  Slip op. at 4.  We read Hatfield somewhat differently.  The
Commission remanded the case to the Judge to determine if the protected
activities cited in the miner’s amended section 105(c)(3) complaint “[were]
investigated by the Secretary in connection with Hatfield’s initial
discrimination complaint to MSHA.”  13 FMSHRC at 546.  Although Hatfield’s
initial complaint was “general in nature” and “allege[d] no specific protected
activities” the Commission reasoned that the statutory scheme of the Mine Act
“provides to miners a full administrative investigation and evaluation of an allegation
of discrimination” prior to the miner’s private right of action.  Id.  Thus,
the Commission held that it was not the terms of the initial complaint to MSHA that
controlled whether the amended complaint could go forward, but the Secretary’s
investigation of the initial complaint.  This holding acknowledges that the
Secretary has the authority to investigate possible discriminatory acts, even
if the miner’s initial complaint is deficient.    

[10] Investigator
Smith testified that MSHA formerly had a practice of assessing whether
protected activity had occurred in section 105(c) complaints based solely on
what the complainants initially reported.  This resulted in some complainants
being turned away without an investigation if protected activity was not
apparent.  After miners complained to Congress that they were being turned away
without an investigation on the merits, MSHA changed the practice, and
discovered that complainants did not know their rights as miners (for example,
to complain to management about hazardous conditions), and thus sometimes did
not articulate protected activity in their complaints although it had
occurred.  Tr. 110-11.  

[11]  MSHA’s initial
interview with the miner can provide the investigator with much needed clarity
regarding the allegations, and can possibly lead to the discovery of other violative
conduct the miner did not know to allege or had trouble articulating in his
charging complaint.  See Tr. 53, 80.   

[12]  Commissioner
Cohen notes that our dissenting colleagues also state:  “It is difficult to
believe that the majority actually thinks MSHA has authority to investigate
every adverse employment action in the mining industries through sweeping
document demands about uninvolved employees without any alleged basis in
section 105(c).  Yet that is the inevitable outcome of its decision.”  Slip op.
at 3-4.  The short answer is that we don’t believe that MSHA has authority to
investigate “every adverse employment action in the mining industries through
sweeping document demands,” nor does MSHA.  The document demands were made in
this case only after Inspector Smith determined, based on his interview with
Gatlin, that discrimination under the Act may have occurred.  As noted above,
the Judge found that MSHA’s document request was not a “fishing expedition.”

[13]  In Oklahoma Press
Pub. Co. v. Walling,
327 U.S. 186, 214-16 (1946), the Supreme Court upheld an administrative
subpoena issued by the Secretary of Labor seeking records during investigation
to determine whether a company was violating the Fair Labor Standards Act.  In
relying on the statute which conferred subpoena power to aid the Department of Labor
in enforcement and in investigations to determine compliance, the Court
rejected the company’s argument that without charge or complaint, Labor’s
subpoena amounted to a fishing expedition to secure information on which to
base a charge.  It stated that “[t]he very purpose of the subpoena and of the
order, as of the authorized investigation, is to discover and procure evidence,
not to prove a pending charge or complaint, but upon which to make one if, in
the Administrator’s judgment, the facts thus discovered should justify doing
so.”  Id. at 201.

[14]  See United States v.
Powell,
379 U.S. 48, 58 (1964) (holding that agency need not meet any standard of probable
cause to obtain enforcement of administrative summons); In re Subpoena
Duces Tecum,
228 F.3d at 348, citing Oklahoma Press, 327 U.S. at 213 (finding that if the issuance of
investigative subpoenas were based upon showings of probable cause, “the result
would be the virtual end to any investigatory efforts by governmental agencies
. . . .”).

[15]  The Commission
has previously held that “the Secretary’s decision to proceed with a complaint
to the Commission, as well as the content of that complaint, is based on the
Secretary’s investigation of the initiating complaint to [him], and not
merely on the initiating complaint itself.”  Sec’y o/b/o Callahan v. Hubb
Corp., 20 FMSHRC 832, 837 (Aug. 1998); see Sec’y o/b/o Dixon v. Pontiki
Coal Corp., 19 FMSHRC 1009, 1017 (June 1997); Hatfield,
13 FMSHRC at 546. 
If
the content of a discrimination complaint filed with the Commission is based on
that which is uncovered during the Secretary’s investigation, then it follows
that the Secretary’s authority to investigate in the first instance cannot be
circumscribed by the early and often uninformed statements made by a miner in
his charging complaint.

[16]  Contrary to
the operator’s assertion at oral argument (Oral Arg. Tr. 12-19), the “relevant and
necessary” standard applied in Big Ridge is not applicable here.  That
standard was imposed by regulation and applies to the Secretary’s power to
demand records in the context of Part 50 audits.  There is no applicable
regulation here; thus, there are no regulatory requirements the Secretary’s
record demand must satisfy.

[17] 
The Seventh Circuit used this well-established standard for purposes of
determining if the Secretary of Labor’s demand for information from a mine
operator was in accordance with the Fourth Amendment.  Big Ridge, Inc.,
715 F.3d at 646 (citing See v. City of Seattle, 387 U.S. 541, 544 (1967). 
The Circuit adopted this standard because it recognized that the Secretary’s
request for information and records from an operator pursuant to section
103(h), for Fourth Amendment purposes, “amounts to an administrative subpoena
in substance.”  Id.  In order to create a test for determining
whether a request by the Secretary under section 103(h) is “reasonably required
. . . to enable him to carry out his investigative functions,” it is
appropriate for the Commission to apply the standard used to evaluate subpoenas
under the Fourth Amendment. 

In Warrior
Coal, LLC, the Commission therefore applied this standard when
determining that the Secretary’s request was “reasonable” as required by
section 103(h).  Warrior Coal, LLC,          38 FMSHRC ___, slip
op. at 5-8, KENT 2011-1259-R et al. (May 17, 2016), appeal docketed, No.
16-3646 (6th Cir. June 15, 2016).  The limitations placed on the
Secretary’s information requests by the application of this standard
appropriately balances the Secretary’s authority against the burden of
compliance placed on the mine operator and the possibility of government
overreach.

[18]  In similar
instances, Congress has chosen not to impose specific content requirements on a
charging complaint or a service of notice requirement on the agency involved.  See,
e.g., United States v. Woerth, 130 F. Supp. 930, 943 (N.D. Iowa
1955), aff’d, 231 F.2d 822 (8th Cir. 1956) (“There is no provision in
the [Packers and Stockyards] Act or in any of the regulations promulgated
thereunder that the contents of a complaint against a registrant be made known
to him before an investigation may be made of his records in connection
therewith.”); Solis v. Laborer’s Int’l Union of N. Am., 775 F. Supp. 2d
1191, 1212 (D. Haw. 2010) (rejecting respondent’s argument that prior to
release of any records the Secretary of Labor must provide the nature of and
identify specific allegations of the election challenge, and concluding that
“[i]t is evident from reading the LMRDA that Congress intended that the
Secretary exercise broad authority in investigating labor unions, such that
‘[t]he Secretary is not required to demonstrate probable cause exists to launch
a LMRDA investigation.’  McLaughlin, 880 F.2d at 174.”); EEOC v. Merrill
Lynch, Pierce, Fenner & Smith, 677 F. Supp. 918, 926 (N.D. Ill. 1987)
(holding that the EEOC was not required to give employer Title VII notice of
sex discrimination charge before commencing investigation or requesting
disputed report from employer under Equal Pay Act and Fair Labor Standards Act).

In
contrast, certain other statutes specifically impose a notice requirement.  For instance,
Title VII originally required that the EEOC simply provide a copy of a charge
to the employer accused of discrimination.  Pub.L. 88-352, § 706(a), 78 Stat.

259.  However, in 1972, the provision was amended to require that the
Commission “serve a notice of the charge (including the date, place and
circumstances of the alleged unlawful employment practice) on [the] employer .
. . within ten days” of the charge being filed.  42 U.S.C. § 2000e-5(b); see
also EEOC v. Shell Oil Co., 466 U.S. 54, 63 (1984).

[19]  Beyond demanding
identification of the protected activity, HCC did nothing to remedy the
deficiencies it would later identify in MSHA’s demand.  It failed to raise
concerns about the vagueness or broadness of the language or seek a revision of
the request until the March 24 conference call with the assigned Judge.  This
was one month after MSHA first requested the documents, a week after being
notified by MSHA that Investigator Smith would visit on March 23, and one day
after the citations and order had been issued and the daily penalties began to
accrue.  See Gov. Exs. 4, 6.  Mine Manager Adelman testified that he did
not seek clarification of the request because he felt that the personnel files
were “off limits anyway,”  but indicated that if it had been clarified he “may
have been able to determine what part of a [] file might be needed” and they
“could have worked that out.”  Tr. 119-20; see also ALJ Dec at 17-18. 

[20]  It has been HCC’s
position from the beginning that the Secretary is not entitled to the requested
personnel records as part of its investigation.  See Gov. Ex. 7 at 2
(refusing to release records on ground that “there has been no basis
established for such request, given that no protected activity exists in this
case”).  HCC did not provide the parts of the record that were clearly
relevant, while withholding the objectionable parts.  In fact, HCC’s counsel
stated at the oral argument that the personnel records were not necessary
because the Secretary could have obtained the disparate treatment information
through other means, such as interviews.  She stated that even if a protected
activity had been provided, it was HCC’s position that the Secretary was not
entitled to the requested personnel records because they were not “relevant and
necessary” to his investigation.  Oral Arg. Tr. 19.  Therefore, a longer abatement
time would not have changed the outcome.

1  Commissioner
Young also disagrees with the majority’s analysis of the request here as an
“administrative subpoena” and incorporates in this opinion his dissent in Warrior
Coal, LLC, 38 FMSHRC ___, slip op. at 15-21, KENT 2011-1259-R et al. (May
17, 2016), appeal docketed, No. 16-3646 (6th Cir. June 15, 2016).  An
MSHA request for documents under section 103(h) is not an administrative
subpoena.  Commissioner Althen continues to agree with observations in
Commissioner Young’s dissent in Warrior Coal regarding the nature of an
administrative subpoena versus an MSHA document request as set forth in his
separate opinion in Warrior Coal.

2  Miners may
initially fail to assert in precise legal terms the elements of a
discrimination claim in their written complaint.  When, as here, a miner’s
complaint is facially invalid, MSHA is entitled to ask questions and
investigate whether any facts asserted by the miner at that point might support
a discrimination claim—that is, can the miner allege the elements of protected
activity and adverse action because of such activity.  Here, MSHA conducted
such a further inquiry of Gatlin’s complaint even though Gatlin did not make a
claim of protected activity or nexus to adverse action.  The right to conduct
such follow-up to a facially invalid complaint is not at issue at this point. 
Here, the miner, admittedly by the majority, did not at any point state a claim
of protected activity.  Thereafter, MSHA was not investigating a claim; it was
hunting to see if it could find a claim.  The question here is whether an MSHA
demand for disclosure of five years of confidential company records is
reasonable when no one, neither the miner nor MSHA, has provided the respondent
with any reasonable legal basis for the disclosure of the records. 

3 Eventually,
notwithstanding MSHA’s refusal to identify any basis for a claim of protected
activity, the operator capitulated with respect to all the demanded documents
except the five years of personnel records.  Upon this refusal, MSHA issued the
citation for violation of section 103(a).

4  The majority
relies upon irrelevant dicta in NLRB v. H.P. Townsend Mfg. Co., 101 F.3d 292
(2d Cir. 1996).  Slip op. at 15.  The majority fails to acknowledge that the
National Labor Relations Act grants the NLRB the authority to issue
administrative subpoenas enforced by court order.  29 U.S.C. § 161(1)-(2).  Nor
does the majority note that the genesis of the cited case was a motion to quash
a subpoena duces tecum.  H.P. Townsend, 101 F.3d at 293-94.  Further,
the case did not even involve the review of an administrative subpoena but
instead whether an individual could be bound to an order when the NLRB failed
to serve an amended complaint naming him as a respondent.  Id. at 293. 
The court distinguished between a charge and a complaint in the context of
considering a necessary precursor to imposing an order upon a private citizen. 
Id. at 294.  In this matter, MSHA seeks to impose a fine upon a private
citizen without any notice of a cognizable claim to which the demanded
documents could be relevant and in advance of any judicial determination of the
propriety of the document demand.

5  On February 6,
2009, the operator’s attorney wrote MSHA “we fail to grasp, and would
appreciate your identifying, what the alleged protected activity is under this
Mine Act discrimination complaint.”  Gov’t Ex. 3.  On February 23, 2009, MSHA
sent its document demand.  Gov’t Ex. 4.  On March 16, 2009, MSHA sent a brief
follow-up demand for the documents.  Gov’t Ex. 6.  The operator quickly
responded, as the majority would require.  By letter dated March 18, 2009, the
operator responded to the demand for five years of personnel files, stating,
“Hopkins County Coal objects to this request on the basis that there has been
no basis established for such request, given that no protected activity exists
in this case, that the company does not release personnel files as requested
absent consent from the individual employee, and that, otherwise, no employee
other than Mr. Gatlin was disciplined, reprimanded or terminated for engaging
in the conduct which led to his own termination.”  Gov’t Ex. 7.  This request
did not result “in good faith discussion” by MSHA.   Instead, in action
directly contrary to the majority’s holding, MSHA sent a one-page letter on
March 20, 2009, without any information whatsoever regarding any basis for a
discrimination claim that would make the request reasonable, but instead
advising that inspectors would be at the mine on March 23 and a terse, “We
expect that the personnel files will be provided to Investigators Smith and
Adamson at this time.”  Gov’t Ex. 8.  The final two steps are a letter from the
operator’s counsel dated March 23, 2009 stating, “[L]et me again reiterate that
the agency has repeatedly delayed and refused to answer a simple question to
which my client is entitled: What is the protected activity in this
case?  If that question cannot be answered, then the agency has no case to
investigate, no jurisdiction, no entitlement and no basis upon which to make
any request.” Gov’t Ex. 9.  That same day MSHA issued the citation.  Gov’t Ex.

10.  We search the record in vain for any evidence of a willingness of MSHA to
engage, let alone actual engagement, in good faith discussions over the
request.  This failure is especially compelling because the requested documents
do not even go to whether the miner engaged in any protected activity.

6  Footnote 19
also begs the question: What could the operator do to “remedy the deficiencies
in the MSHA’s demand”?  The deficiency was that MSHA did not provide any
reasonable basis for it.  Only MSHA could remedy that deficiency.

7  In a footnote,
the majority complains that other than “demanding identification of the
protected activity, HCC did nothing to remedy the deficiencies it would later
identify in MSHA’s demand.”  Slip op. at 17 n.19.  The operator’s request to
find out the basis for an assertion of a cognizable claim of discrimination was
an effort to remedy a deficiency in the demand—namely, the demand did not
relate to any cognizable claim.  The majority fails to explain how the operator
could “remedy” the principal deficiency that no cognizable claim of protected
activity existed. 

8  The
Inspector’s testimony was,

Q. Okay, now, as of March 23rd, had you
determined what the protected activity was?

A. No.

Q. Okay.  So you still don’t know what
conduct it is you’re looking for?

A. I do know what the conduct was,
insubordination.

Tr. 101-02.  The inspector testified
only that Gatlin was a belt examiner and that he had unidentified “suspicions”
of protected activity.  He did not describe what those suspicions were or how
those suspicions could have related to adverse action.  Hundreds of miners are
examiners.  Every mining position entails duties that may result in the miner engaging
in protected activity.  Having a job in a mine does not constitute “protected
activity” within the meaning of section 105(c).    

9  The majority
emphasizes that when, as here, a miner requests temporary reinstatement, MSHA’s
preliminary investigation “must determine only whether there may
be validity to the miner’s claim, or in other words, that the claim was ‘not
frivolously brought.’”  Slip op. at 9 (emphasis in original).  MSHA did not
seek temporary reinstatement for the miner within the 62 days between the
filing of the demand for documents unrelated to protected activity of the
claimant and the issuance of the citation.  Therefore, according to our
colleagues, MSHA had not even determined the miner’s complaint was not
frivolous.  Yet, MSHA penalized the operator for refusing to provide documents
unrelated to the claimant’s conduct while MSHA also refused to explain the
basis for the need for such documents despite the operator’s repeated
requests.  MSHA
never provided any evidence that it even had a colorable claim of
discrimination and, certainly, never provided the operator with any reasonable
basis for disclosure of years of personnel records.

10  At most, the
inspector stated that the complainant “alluded” to some things that “did not
pan out.”  Tr. 112.  Attempting to cover this defect, the Secretary’s counsel
implicitly suggested that the inspector should testify without identifying any
claim of protected activity because MSHA prefers not to let the respondent know
the nature of the claim against it.  Tr. 48.  Consequently, MSHA seeks to
impose a monetary penalty for a failure to produce records claiming that it
need not even support its demand to the adjudicatory body evaluating whether to
assess the demanded penalties.  Apparently, even at the adjudication stage, the
majority asks that we simply assume there might have been a basis for the
inspector’s unsupported “suspicions” of some unidentified protected activity. 

11  This is
especially important under the Mine Act because MSHA does not have the
authority to issue administrative subpoenas.  As a result, the Mine Act does
not afford any pre-disclosure hearing rights to challenge a request in the
first instance.  MSHA’s power to enforce document requests through issuance of
penalty is a powerful coercive weapon.  It is especially important, therefore,
for the Commission to be scrupulous in requiring that MSHA provide a reasonable
basis for document demands that an operator may refuse only at significant
immediate peril.